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SUBURBAN O'HARE COM'N v. DOLE

February 28, 1985

SUBURBAN O'HARE COMMISSION; THE VILLAGE OF ADDISON; THE VILLAGE OF BENSENVILLE; THE CITY OF DES PLAINES; THE VILLAGE OF ELK GROVE VILLAGE; THE CITY OF ELMHURST; THE VILLAGE OF FRANKLIN PARK; THE VILLAGE OF HARWOOD HEIGHTS; THE VILLAGE OF ITASCA; THE VILLAGE OF NILES; THE VILLAGE OF NORRIDGE; THE CITY OF PARK RIDGE; THE VILLAGE OF SCHILLER PARK; THE CITY OF WOOD DALE; AND LAWRENCE C. BIENEMAN, PLAINTIFFS,
v.
ELIZABETH HANFORD DOLE, SECRETARY OF THE DEPARTMENT OF TRANSPORTATION; RUSSELL A. OLSON, REGIONAL REPRESENTATIVE OF THE DEPARTMENT OF TRANSPORTATION, REGION V; DONALD ENGEN, ADMINISTRATOR OF THE FEDERAL AVIATION ADMINISTRATION; PAUL BOHR, DIRECTOR, GREAT LAKES REGION, FEDERAL AVIATION ADMINISTRATION; JOHN GUIDOTTI, SUPERVISOR, ILLINOIS SECTION, CHICAGO AIRPORTS DISTRICT OFFICE, FEDERAL AVIATION ADMINISTRATION; THE CITY OF CHICAGO, A MUNICIPAL CORPORATION; AND THOMAS KAPSALIS; COMMISSIONER OF THE DEPARTMENT OF AVIATION OF THE CITY OF CHICAGO, DEFENDANTS.



The opinion of the court was delivered by: Rovner, District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiffs consist of numerous suburban municipal entities surrounding O'Hare International Airport ("O'Hare"), the Suburban O'Hare Commission, an organization of Illinois municipal corporations created in 1982 for the purpose of protecting its members and their citizenry from environmental damage caused by O'Hare, and Lawrence C. Bieneman, a private citizen of one of the plaintiff villages.*fn1 The defendants are various officials and employees connected with the Federal Aviation Administration ("FAA"), the Department of Transportation, and the City of Chicago and Chicago itself as a municipal corporation ("City defendants"). In its complaint, filed in this Court on December 4, 1984, Suburban O'Hare challenges an adjudicatory decision of the FAA rendered on November 14, 1984 by which the FAA approved Chicago's 20-year "Master Plan" for the construction and operation of commercial air carrier facilities for the metropolitan Chicago area to meet long-term aircraft operations demand at air carrier airports. The FAA not only approved the expansion of aircraft operations at O'Hare, but also rejected other alternatives to handle the 20-year demand which would not increase operations at O'Hare.*fn2

Suburban O'Hare's complaint consists of 78 pages, 188 enumerated paragraphs, and 6 exhibits, some of which are lengthy in themselves. Although a detailed explanation of the complaint is not necessary for purposes of this Opinion, some discussion of the history and background of this case, as alleged by plaintiffs in their complaint, is helpful to an understanding of its present procedural posture.

Background

The FAA's November 14, 1984 decision was the culmination of a dispute that began many years before and resulted, in part, from the procedural decision-making framework created by a Consent Decree entered by Judge Stanley J. Roszkowski of the United States District Court for the Northern District of Illinois on October 14, 1982 in the case of State of Illinois ex rel. Scott v. Butterfield, No. 74 C 2410 ("Illinois v. Butterfield litigation"). According to the complaint, for many years the mayors and city councils of the plaintiff communities had asked for reduction in the noise and air pollution emanating from O'Hare. Suburban O'Hare alleges that instead of addressing these problems, the City defendants and the FAA had been following a piecemeal approach to the physical development of O'Hare which led to the ever-increasing expansion of O'Hare's capacity to accommodate flight operations far beyond its original design. Because the FAA awarded financial grants to Chicago for the construction of individual projects without examining the long-term expansion program as a whole, frequently after the projects had already been built, the issue of how best to meet long term aviation growth was ignored.

To stop this piecemeal expansion of O'Hare, the State of Illinois and several of the plaintiffs in this case brought the Illinois v. Butterfield litigation, seeking disclosure of the City of Chicago's and the FAA's long-term aviation goals and a comprehensive exploration of alternatives to O'Hare expansion. The plaintiffs sought declaratory and injunctive relief under the National Environmental Policy Act, under the Administrative Procedure Act, and under various other federal statutes, to stop the expansion of O'Hare and the allegedly uncontrolled increase in aircraft operations, and noise and air pollution resulting therefrom. In addition to examining the alternatives to meet the long-term aviation operations demand for the Chicago metropolitan area, the plaintiffs wanted the FAA to select an alternative to meet the demand which did not involve the ever-increasing expansion of O'Hare.

The Consent Decree

The Consent Decree entered in the Illinois v. Butterfield litigation created a procedural framework for such comprehensive decision-making. According to Suburban O'Hare, in 1982 Chicago had proposed a massive construction program at O'Hare pursuant to an FAA sponsored "Master Plan." That Master Plan program involved the construction of hundreds of individual projects, and Chicago was ready to proceed with a number of these projects, designated as Phase I projects. Illinois and the plaintiff municipal entities in the Illinois v. Butterfield litigation were prepared to try to stop construction on Phase I projects by seeking injunctive relief. The Consent Decree thus resulted from an attempt to resolve competing interests: Phase I construction could proceed in return for the promise of the FAA and Chicago that all other construction proposed by the Master Plan, now called "Phase II" construction, would not commence until the FAA made a substantive decision to approve or disapprove the entire Master Plan proposal for meeting the 20-year metropolitan aircraft operations demand.

The Consent Decree itself provides in relevant part: that "[a]ll future development at O'Hare will comply with all then applicable requirements of Federal and State of Illinois laws requiring environmental analysis and processing" (Consent Decree, ¶ 1a); that construction of certain projects would not proceed until an Environmental Impact Statement was completed (Consent Decree, ¶ 1d); and that "the entire Master Plan development for O'Hare . . . will be presented to the FAA for Airport Layout Plan approval and the related environmental review, as a single, comprehensive submission" (Consent Decree, ¶ 1f).

The Airport Layout Plan ("ALP") is the final product of the Master Plan process and is based on the various facilities developed in the Master Plan to meet the 20 year long-term aircraft operations demand of the Chicago metropolitan area. A Final Environmental Impact Statement ("FEIS") based on the requirements of the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. ("NEPA"), accompanied the ALP, which was submitted by Chicago to the FAA in April 9, 1984. On May 31, 1984, the FAA approved the FEIS. The FAA described the issue in its Record of Decision reflecting the approval of the ALP as follows:

  The issue is whether to approve the Airport Layout
  Plan submitted by the City of Chicago. Approval of it
  would allow the City to proceed with implementing the
  proposed development at the airport and to request
  Federal funds for eligible items of development. Not
  approving it would prevent the City from proceeding
  with the development in a timely manner.

(Complaint, Exhibit 4 at p. 2.) On November 14, 1984, the FAA approved the ALP as the final product of Chicago's Master Plan. In the Record of Decision, the FAA specifically disavowed approval of the ALP for federal funding purposes:

  Approval of the Airport Layout Plan does not
  represent approval as far as necessity for the
  development is concerned nor is it a commitment of
  Federal funds for any future development. It
  signifies a concurrence for planning purposes based
  on review of conformance with current standards for
  safety, utility, and efficiency.

(Complaint, Exhibit 4 at p. 2.)

The Present Suit

On December 4, 1984, Suburban O'Hare filed its complaint in this Court, together with a motion for a temporary restraining order and for a preliminary injunction, supported by extensive affidavits.*fn3 The Complaint, although lengthy, is in two counts. In Count I, Suburban O'Hare asserts that the FAA and the City defendants, in approving the ALP in the November 14, 1984 decision, violated the "letter and the spirit" of the Consent Decree; NEPA; the Airport and Airway Improvement Act of 1982, 42 U.S.C. § 2201, et seq. ("AAIA"); Section 176(c) of the Clean Air Act; and plaintiffs' "constitutional right to full disclosure of all relevant data, calculations and methodology." (Complaint, ¶ 172.) Suburban O'Hare alleges that it has a claim for relief in Count I both to enforce the Consent Decree and under the Administrative Procedure Act, 5 U.S.C. § 702, 706. (Complaint, ¶¶ 173, 175.) Suburban O'Hare prays that this Court declare that the November 14, 1984 FAA decision approving the Master Plan is "null, void and of no force and effect . . ." and that this Court enjoin the defendants "from taking any steps in reliance" on that decision.*fn4

Both the City defendants and the FAA have moved to dismiss Suburban O'Hare's complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.*fn5 Because this Court holds that it lacks subject matter jurisdiction over this action, it does not reach the issues posed by the defendants' motions to dismiss for failure to state a claim upon which relief may be granted.

Finally, on January 14, 1984, Suburban O'Hare filed a Petition for Review in the United States Court of Appeals for the Seventh Circuit, in accordance with 49 U.S.C. § 1486(a), which is presently pending. Therefore, the dismissal by this Court of Suburban O'Hare's complaint for lack of subject matter jurisdiction does not affect Suburban O'Hare's substantive right to judicial review of the FAA's November 14, 1984 decision: such review must be sought in the first instance in the Court of Appeals. This Court's holding thus allows the Seventh Circuit to examine the jurisdictional issue at the inception of this case, thereby avoiding the potential waste of time, effort, and expense to both the parties and the judiciary of litigating the case to final judgment in the district court only to have that judgment reversed ultimately for lack of subject matter jurisdiction.

DISCUSSION

I. Exclusive Jurisdiction Vests In The Court of Appeals to Review
   FAA "Orders" Under Section 1486.

In its complaint, Suburban O'Hare seeks to set aside the November 14, 1984 decision of the FAA that approved the Master Plan and the ALP for O'Hare submitted by the City defendants. In addition to approving the ALP, that decision also made several other determinations under various FAA regulations promulgated under various sections of the Federal Aviation Act in Title 49 of the United States Code. The decision itself reflects that the FAA conducted its review pursuant to Parts 77, 152, and 157 of the FAA regulations, found in 14 C.F.R., respectively relating to: (1) obstruction evaluations for flight operations; (2) the federal airport aid program; and (3) notice requirements for airport construction or alteration. (Record of Decision, Complaint, Exhibit 4 at p. 19.) The FAA also granted exemptions pursuant to Part 139 of 14 C.F.R.

In addition to authority under the Consent Decree, the FAA's review pursuant to Parts 77, 157, and 139 of 14 C.F.R. clearly was conducted pursuant to authority vested in the FAA under Chapter 20 of Title 49; the FAA's review pursuant to Part 152 of 14 C.F.R. was conducted pursuant to authority under Chapter 31 of Title 49. The primary issue in this case is whether jurisdiction to review the FAA's November 14, 1984 decision vests in the district court or in the Court of Appeals.*fn6

Despite the abundance of case law and scholarly commentary on the issue generally, the law is well settled that exclusive jurisdiction vests in the Court of Appeals to review all final orders of the FAA made under Chapter 20 of Title 49. Title 49 U.S.C. § 1486(a) provides:

  (a) Any order, affirmative or negative, issued by the
  Board or Administrator under this chapter, except any
  order in respect of any foreign air carrier subject
  to the approval of the President as provided in
  section 1461 of this title, shall be subject to
  review by the court of appeals of the United States
  or the United States Court of Appeals for the
  District of Columbia upon petition, filed within
  sixty days after the entry of such order, by any
  person disclosing a substantial interest in such
  order. After the expiration of said sixty days a
  petition may be filed only by leave of court upon a
  showing of reasonable grounds for failure to file the
  petition theretofore.

(Emphasis supplied.) Section 1486(d) states that the court "shall have exclusive jurisdiction to affirm, modify or set aside the order. . . ."

In Gaunce v. deVincentis, 708 F.2d 1290 (7th Cir. 1983), cert. denied, ___ U.S. ___, 104 S.Ct. 417, 78 L.Ed.2d 354 (1983), the Seventh Circuit dismissed sua sponte an appeal from a district court judgment granting the defendants' motion for summary judgment. An airman claimed that the FAA violated her rights to procedural due process in revoking her airman's certificate. The FAA revoked the airman's certificate under its authority pursuant to Chapter 20 of Title 49. The Seventh Circuit held that Section 1486 expressly provides that any challenge to an FAA decision made under Chapter 20 can be brought only in the Court of Appeals, and dismissed the case for lack of subject matter jurisdiction in the district court:

  And most importantly, in plain disregard of the
  express terms of section 1486 of the Act, which
  prescribes direct and exclusive review in the court
  of appeals, plaintiff instituted the present action
  in the district court. This action is in derogation
  of the well settled principle that collateral attacks
  upon administrative orders are not permissible. Myers
  v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48-50,
  58 S.Ct. 459, 462-463, 82 L.Ed. 638 (1938); Robinson
  v. Dow, 522 F.2d 855, 858 (6th Cir. 1975); Oling v.
  Air Line Pilots Ass'n., 346 F.2d [270] at 276-277
  [(7th Cir. 1965)]; see Administrative Procedure Act §
  10(b), 5 U.S.C. § 703 (1976) ("The form of proceeding
  for judicial review is the special statutory review
  proceeding relevant to the subject matter in a court
  specified by statute or, in the absence or inadequacy
  thereof, any applicable form of legal action . . . in
  a court of competent jurisdiction."); see also
  Denberg v. United States Railroad Retirement Board,
  696 F.2d 1193 (7th Cir. 1983). It is clear from the
  statutory scheme established by Congress that the
  F.A.A. order was not subject to collateral attack in
  the district court. Robinson v. Dow, supra; Oling v.
  Air Line Pilots Ass'n., supra. Thus the district
  court lacked subject matter jurisdiction over the
  claims asserted by plaintiff-appellant.

708 F.2d at 1291-93 (footnote omitted). In dismissing the case for lack of subject matter jurisdiction in the district court, the Seventh Circuit adhered to a long line of decisions in this Circuit and others recognizing the congressional mandate in Section 1486 of exclusive jurisdiction to review Chapter 20 FAA orders in the Courts of Appeal.*fn7

Thus, if the November 14, 1984 decision of the FAA was made solely under Chapter 20 of Title 49, subject matter jurisdiction to review that decision clearly vests only in the Court of Appeals under Section 1486. Suburban O'Hare sets forth three principal arguments to support its contention that the November 14, 1984 decision must be reviewed in the district court. First, Suburban O'Hare contends that the decision was made not under Chapter 20 of Title 49, but under Chapter 31 of Title 49, the federal airport aid statute. Accordingly, Section 1486, which applies only to FAA orders made under Chapter 20, does not vest exclusive jurisdiction to review the decision in the Court of Appeals. Closely tied to this argument is Suburban O'Hare's assertion that the district court clearly has subject matter jurisdiction to hear Suburban O'Hare's claim that the defendants violated the Consent Decree in the Illinois v. Butterfield litigation. Finally, Suburban O'Hare contends that even if the November 14, 1984 decision was made pursuant to Chapter 20 of Title 49, the decision does not constitute an "order" reviewable exclusively in the Court of Appeals under Section 1486 because the FAA administrative record is either ...


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